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Unmaking a bad federal law

Justice for Some
By ADAM REILLY  |  November 24, 2009


It's been a depressing stretch for supporters of marriage equality. Earlier this month, Maine had a chance to become the first state to back same-sex marriage with a popular vote; instead, Maine's same-sex-marriage law was narrowly repealed. And back in June, the US Department of Justice decided to defend the anti-gay Defense of Marriage Act (DOMA) — with Attorney General Eric Holder explaining, confusingly, that even though the Obama administration thinks the 1996 law ought to be eliminated, it still has an obligation to protect it in court.

But a little-noticed development last week could provide some much-needed winter cheer. On November 17, Boston-basedGay & Lesbian Advocates & Defenders (GLAD) — which filed a suit challenging part of DOMA earlier this year — asked US District Court Judge Joseph Tauro to issue a summary judgment in that case. (A summary judgment, which allows a judge to render a verdict without a trial, can be made in a case in which the facts are not in dispute.) If Tauro agrees, Gillv. Office of Personnel Management could be decided early next year. And if GLAD gets the outcome it wants, DOMA's most onerous provision would suddenly be vulnerable.

A bit more detail: Section 3 of DOMA — the only part of the law targeted in GLAD's suit — effectively states that, even if a same-sex couple's marriage is sanctioned by that couple's home state, the federal government must consider them unmarried.

This isn't just illogical, given the federal government's long-standing deference to states on the question of who can and can't get hitched; it's also destructive for the married couples involved. For example: Gill's lead plaintiff, Nancy Gill, is a US postal worker who's been with her wife, Marcelle Letourneau, for 29 years — but thanks to DOMA, Letourneau isn't eligible for the spousal health benefits she'd get if Gill was a man. Another plaintiff, 79-year-old Herbert Burtis, lost his Parkinson's-stricken husband after a 60-year-relationship — and can't get $700 in monthly Social Security survivor benefits now because he's not a woman.

As GLAD and its co-counsels see it, this constitutes an egregious violation of the Equal Protection Clause in the US Constitution's 14th Amendment. But how likely is it that Tauro will agree — and that he'll conclude a trial is unnecessary?

"We think our case is strong," says Carisa Cunningham, GLAD's director of public affairs and education. "And we think the government has agreed with us on most of the most important facts [of the case]. To us, that points to summary judgment." Notwithstanding the likelihood of an appeal, that would be very good news — provided, of course, that Tauro acknowledges the obvious.

Related: 10 years later, we told you so, 2009 had some redeeming qualities - really, Benign neglect?, More more >
  Topics: News Features , Barack Obama, U.S. Government, Politics,  More more >
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 See all articles by: ADAM REILLY

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